STATE OF MARYLAND, PETITIONER V. BAXTER MACON
No. 84-778
In the Supreme Court of the United States
October Term, 1984
On Writ of Certiorari to the Court of Special Appeals of Maryland
Brief for the United States as Amicus Curiae Supporting Petitioner
TABLE OF CONTENTS
Interest of the United States
Statement
Summary of argument
Argument:
I. The Maryland Court of Special Appeals erred by
suppressing the magazines purchased by the
detectives
A. Law enforcement officers do not need to obtain
a warrant before entering the public
areas of a commercial building and purchasing
items that are freely for sale
B. The question whether respondent was
lawfully arrested will not affect the outcome of
this case and therefore ought not to be
resolved in this proceeding
II. Respondent's retrial presents no double jeopardy
problem if the evidence against him can be
deemed insufficient only after discounting
portions of the State's evidence
Conclusion
QUESTIONS PRESENTED
1. Whether a police officer's entry into the public area of a
commercial store and his purchase once inside of items freely offered
for sale by the store constitutes a search or seizure regulated by the
First or Fourth Amendment.
2. Whether a warrant is required to arrest an individual for the
distribution of obscene materials.
3. Whether the Double Jeopardy Clause bars retrial of a defendant
following reversal of his conviction on the ground that certain
evidence critical to the sufficiency of the prosecution's case was
improperly admitted at the first trial.
INTEREST OF THE UNITED STATES
This case raises two important questions concerning the
constitutional limitations, under the First and Fourth Amendments, on
the ability of law enforcement officers to conduct investigations into
the distribution of obscene materials. Several federal statues govern
the disemination of obscene materials in interstate commerce and
through the mails, 18 U.S.C. 1461, 1462, and 1465, and the federal
government therefore has an interest in the constitutional principles
that regulate this class of cases. The third question presented by
the petition raises an issue under the Double Jeopardy Clause that
would apply to any type of federal prosecution.
STATEMENT
Following a jury trial in the Prince George's County, Maryland,
Circuit Court, petitioner was convicted of distributing obscene
materials, in violation of Md. Code Ann. art. 27, Sections 418 (1982)
(Pet. App. la). Petitioner was fined $500 and was ordered to pay $75
in court costs (ibid.). On petitioner's appeal, the Maryland Court of
Special Appeals reversed his conviction and ordered that the charging
papers be dismissed (Pet. App. la-19a).
1. At approximately 7:00 p.m. on May 6, 1981, three Prince George's
County detectives went to the Silver News, inc., adult book store in
Hyattsville, Maryland, in response to a series of complaints that the
store had been selling adult books to juveniles (Tr. 77-78; see J.A.
39). The store windows were covered with paper to a point above the
eye level of a person of average height (Tr. 79), so that passersby
could not see inside, but the store was apparently open to any member
of the public interested in browsing or purchasing a book or magazine.
Detective Ray Evans entered the store, browsed for a few minutes, and
selected two magazines, which he purchased with a marked $50 bill
supplied by the vice section (J.A. 38; Tr. 79, 81-84, 93-94, 112,
125). /1/ After leaving the store, he showed the magazines to two
other detectives waiting nearby (J.A. 9, 36; Tr. 84, 114), who
concluded that the magazines were obscene under the criteria that they
had previously used in warrant applications (J.A. 28; Tr. 84, 89-90).
All three detectives returned to the store and arrested respondent,
the only employee in the store, /2/ for distributing obscene
materials, in violation of Md. Code Ann. art. 27, Sections 418 (J.A.
27, 34-36; Tr. 112-113, 116-117). The detectives also recovered the
$50 bill that Detective Evans had used to purchase the magazines (J.A.
36, 37; Tr. 124). Respondent ushered out the remaining customers and
locked the store before he was taken away by the detectives (Pet. App.
2a).
2. Prior to trial, respondent moved to suppress the magazines and
the $50 bill on several different grounds (J.A. 4, 9-11, 17-20).
After an evidentiary hearing, /3/ the circuit court denied
respondent's motion in an oral bench ruling (J.A. 39-45). The court
held that Detective Evans' purchase of the magazines did not
constitute a seizure (J.A. 41) and that respondent's warrantless
arrest was lawful (J.A. 41-43). At respondent's trial, the State
offered the magazines in evidence (Tr. 88), but it did not introduce
the $50 bill seized incident to his arrest.
3. On respondent's appeal, the Maryland Court of Special Appeals
reversed his conviction and ordered that the charging papers be
dismissed (Pet. App. 1a-19a). Stating that the "primary question" was
whether the detectives' warrantless arrest of petitioner was lawful
(id. at 4a), the court ruled (id. at 4a-12a) that, because of the
complexity of the definition of obscenity and the need to ensure that
protected speech is not stifled, the First Amendment forbids the
warrantless arrest of a person for distributing allegedly obscene
materials. The court also rejected the State's argument that
suppression was uncalled for because Detectives Evans had purchased
the magazines. The purchase, according to the court, was a
"'preconceived seizure()'" (id. at 13a (citation omitted)), and the
entire episode was a "constructive () seiz(ure)" of respondent's
magazines (id. at 14a). Suppression was also appropriate, the court
ruled (id. at 17a-18a), because the arrest caused respondent to close
the bookstore. In an effort to lessen the impact of its holding, the
court expressly noted (id. at 19a n.2) that its ruling was based
solely upon the First Admendment and did not constitute a modification
of established Fourth Amendment doctrine. Finding that, without the
magazines, the evidence was insufficient to support respondent's
conviction, the court ordered that the charging documents be dismissed
(Pet. App. 19a, citing Burks v. United States, 437 U.S. 1 (1978). The
Maryland Supreme Court denied review, and this Court granted the
State's petition for a writ of certiorari on January 14, 1985.
SUMMARY OF ARGUMENT
1. The Court of Special Appeals erred in holding that the magazines
purchased by the detectives must be suppressed. Law enforcement
officers do not need a warrant to enter the public areas of a
commercial building or to purchase items that the business freely
sells. The detectives' possession of the magazines was thus not a
seizure regulated by the Fourth Amendment. Nor does the First
Amendment provide any basis for suppressing this evidence. The First
Amendment does not generate a legitimate expectation of privacy either
in general or as to the type of premises that the officers entered in
this case. Indeed, its purpose is just the opposite: to protect the
right of public dissemination of ideas. Moreover, the First Amendment
contains no exclusionary rule, and it surely does not require that
conduct that was entirely lawful at the time it occurred retroactively
be deemed unlawful.
2. There is no need to decide in this case whether a law
enforcement officer may effect a warrantless arrest of a suspect for
the distribution of obscene materials. Even if respondent was
unlawfully arrested, the detectives were nonetheless legitimately in
possession of the magazines introduced at trial, and the only evidence
that the detectives secured by virtue of respondent's arrest was not
received in evidence at trial. Because there were no "fruits" of that
arrest admitted into evidence, it is immaterial to this case whether
respondent's arrest was lawful.
In any event, respondent's arrest was lawful. The Fourth Amendment
allows the police to make warrantless arrests if no search of a
private area is needed to effect the arrest. The First Amendment does
not forbid this practice because a warrantless arrest for the
distribution of obscene materials, unlike a seizure of those items, is
not tantamount to a prior restraint. Moreover, because the Fourth
Amendment requires a magistrate promptly to determine whether a
warrantless arrest was supported by probable cause, a law enforcement
officer's judgment that certain publications or films are obscene will
not go unreviewed.
3. The petition also presents the question whether, once an
appellate court has determined that certain evidence critical to the
sufficiency of the prosecution's case was erroneously admitted, the
Double Jeopardy Clause bars retrial on that charge. The Court would
need to reach this issue only if it first upholds the ruling of the
court below that the magazines were improperly admitted. Even in that
event, however, we believe that this is not an appropriate case in
which to resolve this important issue of double jeopardy law because a
decision on that issue in the State's favor will not enable the State
to conduct a retrial of the respondent if it cannot use the evidence
that the court below ordered suppressed. Respondent was charged with
distributing obscene materials, and it appears to be legally
impossible to prove such a charge without some evidence of the
distribution of or the contents of the magazines; indeed, the State
has not suggested that there is in fact any way for it to proceed with
a retrial even if it were permitted to do so. Accordingly, this issue
is of mere academic interest to the parties and need not be resolved
in this case.
Should the Court reach the issue, however, we think it clear that
the Double Jeopardy Clause does not bar a retrial at which the
prosecution would be free to offer other evidence, if such evidence
were available, to substitute for the evidence that was erroneously
admitted at the first trial. When a court finds that all of the
evidence adduced at the first trial fails to prove a defendant's guilt
and the court enters a judgment of acquittal, the policy of the Double
Jeopardy Clause to protect a defendant from further prosecution is
applicable. Here, however, the evidence at trial, though perhaps
legally defective for reasons unrelated to the historic fact of
respondent's guilt or innocence, can hardly be said to have failed to
establish his guilt. The relevant double jeopardy policy is therefore
not implicated by allowing a retrial. If the prosecution can
substitute other, legally-competent evidence for the evidence that was
improperly admitted at a defendant's first trial, society's interest
in convicting the guilty outweighs any possible interest the defendant
can invoke against retrial.
ARGUMENT
I. THE MARYLAND COURT OF SPECIAL APPEALS ERRED BY SUPPRESSING THE
MAGAZINES PURCHASED BY THE DETECTIVES
In this case, The Maryland Court of Special Appeals held that the
magazines purchased by Detective Evans must be suppressed because
respondent's ensuing warrantless arrest for the distribution of
obscene materials was unlawful. That analysis, in our opinion, is
seriously flawed in several respects. For the reasons given below,
because neither the Fourth nor the First Amendment requires a law
enforcement officer to obtain a warrant before purchasing books or
magazines from a store, the detectives were lawfully in possession of
the magazines that were introduced in evidence at respondent's trial.
Nothing in this Court's jurisprudence or sound policy justifies
collapsing this lawful conduct into the subsequent events or
dispensing with the uniform precondition to suppression of evidence
that its procurement be causally related to the alleged illegality.
Accordingly, it is immaterial to this case whether respondent was
lawfully arrested.
A. Law Enforcement Officers Do Not Need To Obtain A Warrant Before
Entering The Public Areas Of A Commercial Building And Purchasing
Items That Are Freely Offered For Sale
1. The Fourth Amendment does not regulate every action that a law
enforcement officer takes in investigating crime; rather, the
Amendment, by its terms, applies only to "searches and seizures."
Those terms limit the scope of the Fourth Amendment and, in so doing,
also describe different types of conduct: a search occurs only when
the government introduces on a person's legitimate expectation of
privacy, while a seizure takes place when the government substantially
interferes with a persons's liberty or his possessory interests in
property. See, e.g., Hudson v. Palmer, No. 82-1630 (July 3, 1984),
slip op. 7; United States v. Karo, No. 83-850 (July 3, 1984), slip
op. 6-7; United States v. Jacobsen, No. 82-1167 (Apr. 2, 1984), slip
op. 3; Smith v. Maryland, 442 U.S. 735, 740-741 (1979). The Fourth
Amendment also does not permit the courts to adopt an undifferentiated
approach to the question whether a sequence of discrete actions taken
by the police constitute either a search or a seizure. On the
contrary, the Court's decisions make clear that each action must be
separately examined to determine whether it falls within the scope of
the Fourth Amendment. See, e.g., United States v. Karo, slip op.
6-12; United States v. Jacobsen, slip op. 8-16; United States v.
Knotts, 460 U.S. 276, 282-283 (1983).
Here, Detective Evans entered respondent's bookstore, browsed for a
few moments, and purchased two magazines before conferring with his
partners and, ultimately, deciding to arrest respondent. The only
evidence that the detectives secured as the product of respondent's
arrest, however, was the original $50 bill that Detective Evans had
used to purchase the magazines, and that bill was not introduced in
evidence at trial. Hence, because there were no "fruits" of that
arrest admitted at trial, there is no reason for the Court to decide
whether respondent's warrantless arrest was lawful, and unless
Detective Evans committed an unlawful search or seizure to obtain the
magazines prior to respondent's arrest, there is no basis for invoking
the exclusionary rule in this case.
a. To begin with, it is clear that Detective Evans' entry into
respondent's store did not constitute a search. Even though law
enforcement officers are normally required to obtain a search warrant
before inspecting the private areas of a business (see, e.g., Marshall
v. Barlow's, Inc., 436 U.S. 307 (1978)), it is well established that
police officers, like private parties, are entitled to accept a
business's general invitation to the public to enter its commercial
premises, even if the officers do not intend to transact business.
See Donovan v. Lone Steer, Inc., No. 82-1684 (Jan. 17, 1984), slip op.
5; Lewis v. United States, 385 U.S. 206, 211 (1966); id. at 213
(Brennan, J., concurring); cf. Oliver v. United States, No. 82-15
(Apr. 17, 1984) (open fields surrounding a house); Air Pollution
Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861 (1974) (open
fields surrounding a business); see generally Katz v. United States,
389 U.S. 347, 351 (1967) ("(W)hat a person knowlingly exposes to the
public, even in his own home or office, is not a subject of Fourth
Amendment protection"). /4/ Moreover, because "(a) commercial
establishment when open to the public is open for all legitimate
purposes" (United States v. Berkowitz, 429 F.2d 921, 925 (1st Cir.
1970), so long as the officers do not exceed the limits of their
invitation -- for instance, by entering after business hours or by
rummaging through a firm's business records -- they may lawfully
observe whatever is in plain view once they are inside. See Marshall
v. Barlow's, Inc., 436 U.S. at 315 (footnote omitted) ("(w)hat is
observable by the public is observable, without a warrant, by the
Government inspector as well"). Finally, that law enforcement
officers are not in uniform when they enter the premises is immaterial
in this regard, because the Fourth Amendment does not protect a
person's misplaced confidence that the persons with whom he transacts
business are neither the police nor a threat to his criminal
activities. See United States v. Karo, slip op. 10 n.4; id. at 3-4
(O'Connor, J., concurring in part and concurring in the judgment);
United States v. White, 401 U.S. 745, 752 (1971) (plurality opinion);
Osborn v. United States, 385 U.S. 323, 326-331 (1966); Hoffa v.
United States, 385 U.S. 293, 300-303 (1966); Lewis v. United States,
supra; Lopez v. United States, 373 U.S. 427, 437-439 (1963). The
detective's presence in respondent's bookstore was thus entirely
lawful.
b. Nor did Detective Evans' purchase of the two magazines
constitute a seizure for purposes of the Fourth Amendment. The sale
of an item, like the abandonment of that item, necessarily entails the
owner's relinquishment of any further possessory interest. A police
officer's purchase of a magazine, like his purchase of narcotics,
therefore implicates no Fourth Amendment concern. See Texas v. Brown,
460 U.S. 730, 748 (1983) (Stevens, J., concurring in the judgment);
Lewis v. United States, 385 U.S. at 211; Abel v. United States, 362
U.S. 217, 241 (1960) (abandonment); cf. United States v. Matlock, 415
U.S. 164 (1974) (consent). Hence, unless the First Amendment requires
a different result, the detectives were lawfully in possession of the
magazines prior to respondent's arrest, and the Court of Special
Appeals erred in ordering that evidence to be suppressed. /5/
2. The Court of Special Appeals' reversal of respondent's
conviction hinges upon its conclusions that the First Amendment
establishes different rules for police conduct in this area (Pet. App.
19a n.2) and that the two magazines purchased by Detective Evans must
be suppressed to ensure that respondent would not lack a remedy for
what it found to be an illegal arrest in this case (Pet. App.
12a-15a). That analysis is unsound.
a. To begin with, the First Amendment does not bar undercover law
enforcement officers from entering the public areas of a commercial
building or from purchasing items that a business freely offers for
sale. The principal purpose of the First Amendment, of course, is
protection of the public expression of ideas. Although the First
Amendment, in some circumstances, protects privacy of belief or
association where doing so is essential for effective political
expression (see Buckley v. Valeo, 424 U.S. 1, 64-66 (1976), the First
Amendment merely protects legitimate expectations of privacy that stem
from an independent source. The First Amendment does not by itself
give rise to a privacy interest where no reasonable person could
expect one (cf. Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978)), and
there surely is no basis for concluding that the proprietors or
employees of a commercial establishment that is open to the public
possess a legitimate expectation of privacy in this regard. Where a
business invites the public, either expressly or by necessary
implication, to enter upon the premises at will, as respondent did in
this case, the invitation demonstrates that the proprietors, and, a
fortiori, the employees, do not expect to retain a privacy interest in
the open portions of the business premises. If so, there is plainly
no reason for the First Amendment independently to give rise to an
expectation of privacy that the proprietors and employees themselves
do not possess.
That Detective Evans purchased the magazines "'as part of a sinlge
planned transaction'" (Pet App. 13a (citation omitted)) is also
immaterial in this regard. As the Court made clear in Scott v. United
States, 436 U.S. 128, 136 (1978) (emphasis in original), while a
police officer's "motives may play some part in determining whether
application of the exclusionary rule is appropriate after a * * *
constitutional violation has been established," the question whether a
constitutional violation has occured "turns on an objective assessment
of the officer's actions in light of the facts and circumstances
confronting him at the time." See also id. at 137-138. For that
reason, Detective Evans' intent at the time he entered respondent's
store or when he purchased the magazines is irrelevant to the question
whether those actions constituted a search or seizure.
To be sure, it is established that First Amendment concerns should
be taken into account in determing what is reasonable under the Fourth
Amendment (see Stanford v. Texas, 379 U.S. 476, 485 (1965), so that in
some circumstances there are special rules applicable to searches for
or seizures of books, films, or papers. See, e.g., Zurcher v.
Stanford Daily, 436 U.S. 547, 564 (1978); A Quantity of Books v.
Kansas, 378 U.S. 205 (1964); Marcus v. Search Warrant, 367 U.S. 717
(1961). But these remain Fourth Amendment rules, and they govern only
conduct that constitutes a search or a seizure. Accordingly, unless a
law enforcement officer's conduct can reasonably be classified as
either a search or a seizure, the Fourth Amendment, even as amplified
by the First, does not regulate that activity.
b. The Court of Special Appeals also erred by retrospectively
applying the exclusionary rule in blatant disregard of the normal
cause-and-effect relationship between events. As this Court explained
only last Term, "(i)t is clear that the cases implementing the
Exclusionary Rule 'begin with the premise that the challenged evidence
is in some sense the product of illegal governmental activity.'" Nix
v. Williams, no. 82-1651 (June 11, 1984), slip op. 11 (emphasis in
original), quoting United States v. Crews, 445 U.S. 463, 471 (1980);
see also, e.g., Segura v. United States, No. 82-5298 (July 5, 1984),
slip op. 17-20; McGuire v. United States, 273 U.S. 95, 98-100 (1927).
The First Amendment plainly does not require a different result.
Because Detective Evans' purchase of the magazines violated no First
or Fourth Amendment right of respondent's, there is no reason to
exclude them from evidence at trial. Cf. United States v. Payner, 447
U.S. 727, 734-737 (1980) (suppression is equally inappropriate under
the Fourth Amendment or a federal court's supervisory powers where the
government's conduct violated right of the defendant). What is more,
even if the First Amendment were to require that evidence obtained in
violation of its strictures be suppressed in some instances, there is
surely no rational basis for a rule that the First Amendment requires
suppression of validly obtained evidence because of some later,
causally-unrelated infringement of First Amendment rights. /6/ The
Court of Special Appeals therefore erred by ordering the magazines to
be suppressed.
To be sure, respondent, like any citizen, may be entitled to be
free from harrassment or from an improperly motivated investigation.
But the court of appeals did not point to any evidence in this case
that would support such a claim -- it did not, for instance, question
that respondent in fact committed the offense for which he was
arrested -- and there is no reason to presume that the detectives'
actions were spurred by illegitimate concerns. The only action taken
by the detectives that the Court of Special Appeals found offensive to
any constitutional value was their warrantless arrest of respondent.
Whatever effect that may have on respondent's prosecution as a matter
of state law, it is entirely clear there is no basis in either the
First or Fourth Amendment for the court's ruling requiring suppression
of the magazines that respondent freely parted with prior to his
arrest. /7/
B. The Question Whether Respondent Was Lawfully Arrested Will Not
Affect The Outcome Of This Case And Therefore Ought Not To Be Resolved
In This Proceeding
1. For the reasons given above, the detectives lawfully possessed
the magazines that were purchased from respondent's store, and the
state circuit court therefore properly admitted those items in
evidence at respondent's trial. The only evidence that the detectives
acquired by virtue of respondent's arrest was the $50 bill that they
had used to purchase the magazines, but that bill was not received in
evidence. It is thus unnecessary for the Court to decide at this time
whether the First or Fourth Amendment requires that a neutral and
detached magistrate, rather than a law enforcement officer, assess the
sufficiency of the evidence to arrest a suspect for distributing
obscene materials. There will be time enough to resolve the arrest
issue in a case that requires it; this one, however, does not.
2. Were that question before the Court, however, we would submit
that neither the First nor the Fourth Amendment requires an antecedent
judicial determination of probable cause to arrest a person for the
sale of obscene materials.
a. The Court's decisions construing the Fourth Amendment Warrant
Clause recognize a sharp constitutional distinction between searches
and seizures. As noted above (Pages 7-8, supra), a search involves an
interference with a person's legitimate expectations of privacy.
Because "the ruptured privacy of the victims' homes and effects cannot
be restored" once an unlawful search has occured (Linkletter v.
Walker, 381 U.S. 618, 637, 637 (1965), law enforcement officers are
generally required to secure a warrant before they may conduct a
search (see, e.g., United States v. Karo, slip op. 11). A seizure, by
contrast, represents an interference with an individual's possessory
interests in property. The consequences of an erroneous seizure --
deprivation of possession of the property -- are not nearly as severe
as in the case of an erroneous search and are remediable by ordering
restoration of unlawfully seized property to its owner. See Fed. R.
Crim. P. 41. For that reason, law enforcement officers may ordinarily
seize property in plain view without a warrant if they have probable
cause to believe that it is either contraband or evidence of a crime.
See Illinois v. Andreas, No. 81-1843 (July 5, 1983), slip op. 6;
United States v. Jacobsen, slip on. 11-12; Texas v. Brown, 460 U.S.
730, 738, 741-742 (1983) (plurality opinion); id. at 748 (Stevens,
J., concurring in the judgment); Payton v. New York, 445 U.S. 573,
587 (1980); G.M. Leasing Corp. v. United States, 429 U.S. 338, 354
(1977). Indeed, the Fourth Admendment allows the police to make a
warrantless, probable-cause seizure of a person (i.e., an arrest) in a
public place. See United States v. Santana, 427 U.S. 38, 41-42
(1976); United States v. Watson, 423 U.S. 411 (1976). /8/
However, because First Amendment considerations must be taken into
account in defining what is reasonable under the Fourth Admendment
(page 13, supra), the Court has recognized an exception from the
latter rule for books or similar materials and has required a judicial
determination of probable cause before such items may be seized. See
Roaden v. Kentucky, 413 U.S. 496, 502-503 (1973) (collecting cases).
As the Court explained in Roaden, "the common thread * * * (of those
decisions) is to be found in the nature of the materials seized and
the setting in which they were taken" (413 U.S. at 503). The Fourth
Amendment requires antecedent judicial review of the sufficiency of
the evidence to support a seizure of books because a seizure is
tantamount to a prior restraint of communications that may be
protected by the First Amendment (see 413 U.S. at 503-504; see also
Zurcher v. Stanford Daily, 436 U.S. at 566-567), a harm equal in
degree to that resulting from an unlawful search.
b. Contrary to the view of the Court of Special Appeals, however,
that exception cannot automatically be applied in the context of an
arrest. Rather, the Court's decisions make clear that, because "the
overarching principle * * * embodied in the Fourth Amendment" is one
of "'resonableness'" (United States v. Villamonte-Marquez, No. 81-1350
(June 13, 1983), slip op. 9), which "is not capable of precise
definition or mechanical application" (Bell v. Wolfish, 441 U.S. 520,
559 (1979), the specific context in which an issue arises must be
closely examined in order to balance the particular interests involved
(see, e.g., New Jersey v. T.L.O., No. 83-712 (Jan. 15, 1985), slip op.
10; United States v. Villamonte-Marquez, slip op. 9, 13-14; Terry v.
Ohio, 391 U.S. 1, 9 (1968). We submit that, on balance, the rule
adopted by the Court of Special Appeals is unwarranted.
The Court of Special Appeals concluded (Pet. App. 17a-18a) that the
warrantless arrest of respondent was tantamount to a prior restraint
because it caused him to close the bookstore. A warrantless arrest
does not directly or inevitably lead to that result, however. That it
did in this case was purely fortuitous because respondent happened to
be the only employee in the store at the time. But any arrest of
respondent on any charge -- whether for distributing obscene materials
or for distributing narcotics -- would have had that effect. Clearly,
however, respondent would have enjoyed no immunity from arrest or
prosecution for the latter crime due simply to the nature of his
employment. See Branzberg v. Hayes, 408 U.S. 665, 682-683, 691-692
(1972). Hence, unless the First and Fourth Amendments arbitrarily
forbid warrantless arrests of the store's only employee in such
circumstances, the ruling below therefore cannot be justified because
of the incidental effect that arrest had in this case upon First
Amendment interests. /9/
The rule adopted by the Court of Special Appeals is also overbroad
in another respect. Presumably, the court intended that its rule
would apply to every warrantless arrest for the distribution of
obscene materials. If so, that rule would forbid warrantless arrests
in circumstances in which there is no realistic possibility that an
arrest could amount to a prior restraint, such as where a person is
arrested after closing the store and while he is on his way home. In
that case, however, the concerns that prompted this Court to create a
special exception to the Fourth Amendment rule governing the
warrantless seizure of items are wholly absent. The Court of Special
Appeals' extension of that rule to the case of warrantless arrests
thus unjustifiably limits a police officer's recognized authority
promptly to apprehend a suspect for the commission of a crime,
provided that no search of a private area is necessary to effect the
arrest.
To be sure, there is some force to the argument that, because the
definition of obscenity is sometimes difficult to apply, a neutral and
detached magistrate, raher than a law enforcement officer, should
decide whether there is probably cause to arrest a person for the
distribution of a particular, allegedly-obscene book or film. But
that does not appear to be the primary objection to this practice;
nor was it the chief reason that this Court gave for creating an
exception to the normal rule permitting a warrantless seizure of items
that a law enforcement officer has probable cause to believe
constitute contraband or evidence of a crime, which was that the
seizure amounts to an unlawful prior restraint (see Roaden v.
Kentucky, 413 U.S. at 504). A warrantless arrest will not have that
effect except in the situation in which, fortuitously, the suspect
happens to be the only employee in the store. And even in that case,
because a warrantless arrest must be followed by a hearing at which a
magistrate will determine whether the arrest was supported by probable
cause (see Gerstein v. Pugh, 420 U.S. 103 (1975)), a police officer's
determination that a particular book or film is obscene will be
promptly reviewed by a court. On balance, therefore, we submit that
neither the Fourth nor the First Amendment forbids the warrantless
arrest of a suspect for the distribution of obscene materials.
II. RESPONDENT'S RETRIAL PRESENTS NO DOUBLE JEOPARDY PROBLEM IF THE
EVIDENCE AGAINST HIM CAN BE DEEMED INSUFFICIENT ONLY AFTER DISCOUNTING
PORTIONS OF THE STATE'S EVIDENCE
1. The final issue presented by the petition is whether the Double
Jeopardy Clause forbids a retrial when an appellate court concludes
that certain items of evidence were unlawfully admitted at trial, and
the remaining evidence is insufficient to support the verdict.
Because of the manifest error of the court below on the suppression
issue, there should be no occasion to reach that issue here. But even
if the Court were to affirm the ruling below suppressing the
magazines, this case would still be an inappropriate vehicle for the
Court to decide this important and recurring issue of double jeopardy
law, because the issue is of only academic interest to the parties to
this case.
Respondent was charged with the distribution of obscene materials,
and it appears to be legally impossible for the State to prove that
charge without introducing into evidence the magazines themselves. As
the petitioner in this Court, the State must demonstrate that a ruling
in its favor on the double jeopardy issue will provide it with some
form of relief. But if the lower court's suppression ruling is
sustained, both the magazines themselves and, presumably, the
detectives' observations of what the magazines contained must be
excluded. The State has not suggested any way in which it could
proceed with a retrial in those circumstances even if it were
permitted to do so by securing a ruling in its favor on the double
jeopardy issue, nor has it suggested that is has any intention to
reprosecute. Hence, because a favorable ruling from this Court on the
double jeopardy question coupled with an unfavorable ruling on the
First and Fourth Amendment questions in the petition will afford the
State no relief, the State is seeking little more than an advisory
opinion from this Court regarding the conduct of future prosecutions.
cf. Allen v. Wright, No. 81-757 (July 3, 1984), slip op. 12-13.
Accordingly, we do not believe that there is any reason for the Court
to resolve this question even if the Court were to affirm the
suppression ruling of the court below.
2. Should the Court reach the issue, however, we think it clear
that the Double Jeopardy Clause does not bar a retrial where an
appellate court reverses a conviction on the ground that the trial
court erroneously admitted certain evidence, even where that evidence
is crucial to proof of the government's case.
Burks v United States, 437 U.S. 1, 16-18 (1978), held that a
judgment of acquittal entered by an appellate court on the ground that
the totality of the evidence is insufficient to support the verdict,
unless overturned on further review, is entitled to the same
preclusive effect under the Double Jeopardy Clause as a jury (or trial
court) verdict of acquittal. However, the companion case of Greene v.
Massey, 437 U.S. 19, 26 n.9 (1978), expressly left open the question
whether the clause would also bar a retrial following a reversal of a
conviction where some of the prosecution's evidence is found to have
been erroneously admitted and the remaining, legally competent
evidence was insufficient to support the conviction. Since Greene v.
Massey was decided, every federal court of appeals to consider the
question has held that such a circumstance does not erect a bar to
retrial. See United States v. Tranowski, 702 F.2d 668 (7th Cir.
1983), cert. denied, No. 83-5063 (July 5, 1984); United States v.
Chesher, 678 F.2nd 1353, 1357-1359, 1364 (9th Cir. 1982); United
States v. Sarmiento-Prez, F.2d 1239, 1240 (5th Cir.) (per curiam),
cert. denied, 459 U.S. 834 (1982); United States v. Harmon, 632 F.2d
812, 814 (9th Cir. 1980); United States v. Mandel, 591 F.2d 1347,
1371-1374, vacated en banc on other grounds, 602 F.2d 653 (4th Cir.
1979), cert. denied, 445 U.S. 961 (1980); accord, State v.
Longstreet, 619 S.W.2d 97, 100-101 (Tenn. 1981). We submit that the
appellate decisions upholding the government's right to retry a
defendant where a crucilal part of the evidence is subsequently held
to have been erroneously admitted, leaving the remainder of the
evidence insufficient to support a conviction, were correctly decided.
This Court's decisions do not support the ruling of the Court of
Special Appeals. As the Court has often made clear, the Double
Jeopardy Clause provides a defendant with three protections: it
shields him from having to undergo reprosecution despite the existence
of a final judgment of conviction or acquittal for the same offense,
from having a first trial improvidently terminated prior to receipt of
the verdict, and from being subjected to multiple punishments for the
same offense. See, e.g., Richardson v. United States, No. 82-2113
(June 29, 1984), slip op. 6-7; Justices of Boston Municipal Court v.
Lydon, No. 82-1479 (Apr. 18, 1984), slip op. 11 & n.6; North Carolina
v, Pearce, 395 U.S. 711, 717 (1969). The only one of these
protections that is relevant to this case is the right not to be
retried for an offense of which the defendant has previously been
acquitted. But respondent has not been acquitted, and nothing in the
decision of the Court of Special Appeals even remotely suggests that
he was in fact not guilty. In addition, the Double Jeopardy Clause
does not entitle a defendant to demand that a judgment of acquittal be
entered at any particular point in the criminal process. See
Richardson v. United States, slip op. 6-9; Justices of Boston
Municipal Court v. Lydon, slip op. 12-14. This Court's decisions thus
provide no support for the proposition that a retrial is barred simply
because the evidence that the appellate court finds to have been
properly admitted is insufficient by itself to support the conviction.
Nor do the values underlying the Double Jeopardy Clause support
that result. A finding of residual insufficiency under those
circumstances is not tantamount to a judgment of acquittal, but is
simply a description of the effect of the finding of trial error. As
the Court explained in Burks, reversal based on trial error represents
merely "a determination that a defendant has been convicted through a
judicial process which is defective in some fundamental respect," such
as the "incorrect receipt or rejection of evidence * * * (;) it
implies nothing with respect to the guilt or innocence of the
defendant" (437 U.S. at 15). Moreover, Burks acknowledged that the
reasons why retrial has long been permitted where reversal is due
simply to trial error are compelling (437 U.S. at 15, quoting United
States v. Tateo, 377 U.S. 463, 466 (1964):
"It would be a high price indeed for society to pay were
every accused granted immunity from punishment because of any
defect sufficient to constitute reversible error in the
proceedings leading to conviction."
See also Palko v. Connnecticut, 302 U.S. 319, 328 (1937).
As Justice Brennan stated in his dissent in Richardson v. United
States, slip op. 5(emphasis added), "(t)he fundamental principle
underlying Burks, and indeed most of our double jeopardy cases, is
that the prosecution is entitled to one, and only one, full and fair
opportunity to convict the defendant." Where the totality of the
government's evidence is found to be insufficient, as was the case in
Burks, the government has had its one "full and fair opportunity" to
convict those who have violated its laws (ibid.; see also Arizona v.
Washington, 434 U.S. 497, 509 (1978)), and it is rightly denied
another. Where, however, evidence held to be admissible at trial is
later deemed inadmissible, it is neither overreaching nor oppressive
to allow the government an opportunity to proceed again, this time
under correct rules of law.
If a trial court grants, rather than erroneously denies, a
suppression motion or sustains any other objection to the introduction
of evidence upon which the government intends to rely to prove an
essential element of its case, the prosecution has timely notice of
the need to supplement its case and remedy the evidentiary defects.
Where, however, the government is misled as to the need to adduce
substitute or additional evidence because the error is not uncovered
until appeal, the evidence actually introduced by the government "does
not necessarily reflect all other available evidence of the
defendant's involvement. It is impossible to know what additional
evidence the government might have produced had the faulty evidence
been excluded at trial, or what theory the government might have
pursued had the evidence before the jury been different." United
States v. Harmon, 632 F.2d at 814; see United States v.
Sarmiento-Perez, 667 F.2d at 1240. To deny the government the right
to retry the defendant would place the government at its peril in
relying on trial court evidentiary decisions and would jeopardize the
retrial of numerous defendants whose guilt may not be in doubt but
whose convictions have been reversed for erroneous admissions of
evidence.
The courts of appeals have recognized that substantial policy
considerations militate against barring retrials in these
circumstances. As the Seventh Circuit observed in United States v.
Tranowski, 702 F.2d at 671:
A contrary conclusion would lead the government to "overtry"
its cases -- to introduce redundant evidence of the defendant's
guild -- in order to insure itself against the risk of not being
able to retry the defendant should some of its evidence be held
on appeal to be inadmissible. It would also require the court
of appeals, in every case where it reversed a conviction because
of erroneous admission of evidence, to determine the sufficiency
of the remaining evidence -- something the court would otherwise
be required to do only if the government argued harmless error.
/10/
And the Ninth Circuit has pointed out that barring retrials in
these circumstances would injure the rights of defendants as well as
the government (United States v. Harmon, 632 F.2d at 814, quoting
United States v. Tateo, 377 U.S. at 466):
"(I)t is at least doubtful that appellate courts would be as
zealous as they now are in protecting against the effects of
improprieties at the trial or pretrial stage if they knew that
reversal of a conviction would put the accused irrevocably
beyond the reach of further prosecution. In reality, therefore,
the practice of retrial serves defendants' rights as well as
society's interests."
In this case, of course, reprosecution seems entirely impractical,
and perhaps legally impossible, without the suppressed evidence (see
pages 21-22, supra). But often that will not be true, and any general
rule should not be based upon the unique obstacles to retrial that
happen to exist here. Nor is it appropriate to create a narrower rule
that precludes retrial whenever the appellate court is unable to
discern how the prosecution could replace the improperly admitted
evidence. An appellate court must base its decision on the record
before it, and the record does not normally disclose all of the
evidence that the government may have had at hand but elected, for one
reason or another, not to offer into evidence. To enter a judgment of
acquittal in these circumstances would require an appellate court to
speculate whether the government has additional evidence that would
support a prosecution. And, from a practical standpoint, declining to
enter a judgment of acquittal also would not significantly threaten
defendants with unjustified retrials, because it is highly unlikely
that the government would seek a retrial where an appellate court has
excluded evidence that is both crucial to its case and irreplaceable.
Accordingly, were the Court to reach this issue, we submit that the
Double Jeopardy Clause should not be construed to bar a retrial where
an appellate court finds that certain items of evidence, essential to
the prosecution's case as it was presented at the first trial, were
improperly admitted. /11/
CONCLUSION
The judgment of the Maryland Court of Special Appeals should be
reversed.
Respectfully submitted.
REX E. LEE
Solicitor General
STEPHEN S. TROTT
Assistant Attorney General
ANDREW L. FREY
Deputy Solicitor General
PAUL J. LARKIN, JR.
Assistant to the Solicitor General
MARCH 1985
/1/ The magazines were in an unsealed plastic container (Pet. App.
la; Tr. 82-83, 86).
/2/ Neither the circuit court nor the Court of Special Appeals made
a finding as to whether respondent was the proprietor of the store or
merely an employee.
/3/ The hearing on respondent's motion was combined with a hearing
on several similar motions filed by other defendants who had also been
charged in other cases with distributing obscene materials (see J.A.
39).
/4/ As the Court explained in Lewis, "(a) government agent, in the
same manner as a private person, may accept an invitation to do
business and enter upon the premises for the very purposes
contemplated by the occupant" (385 U.S. at 211). See also Northside
Realty Associates, Inc. v. United States, 605 F.2d 1348, 1354-1355
(5th Cir. 1979); United States v. Brandon, 599 F.2d 112, 113 (6th
Cir.), cert. denied, 444 U.S. 837 (1979); United States v. Blalock,
578 F.2d 245, 247 (9th Cir. 1978); United States v. Berrette, 513
F.2d 154, 156 (1st Cir. 1975); United States v. Berkowitz, 429 F.2d
921, 925 (1st Cir. 1970); United States v. Williams, 328 F.2d 887 (2d
Cir.) (per curiam), cert. denied, 379 U.S. 850 (1964); Fisher v.
United States, 205 F.2d 702 (D.C. Cir.), cert. denied, 346 U.S. 872
(1953); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L.
Rev. 349, 357 (1974). It is immaterial in this respect whether the
invitation is viewed as an indication that the proprietor has no
expectation of privacy under Katz in the public areas of his premises
or as consent to the public to enter his premises. See United States
v. Karo, slip op. 3 (O'connor, J., concurring in part and concurring
in the judgment).
/5/ Most state courts to consider the question have ruled in
similar circumstances that a law enforcement officer's purchase of a
book or a similar item for the purpose of determining whether it is
obscene does not constitute a seizure of the item. See Peachtree News
Co. v. Slaton, 226 Ga. 471, 472-474, 175 S.E.2d 539, 540 (1970);
People v. Ridens, 51 Ill2d 410, 416-417, 282 N.E.2d 691, 695 (1972),
vacated and remanded on other grounds, 413 U.S. 912 (1973); State v.
Welke, 216 N.W.2d 641 (Minn. 1974); State v. Flynn, 519 S.W.2d 10,12
(Mo. 1975); State v. Dornblaser, 26 Ohio Misc. 29, 35-37, 267 N.E.2d
434, 438 (1971); Cherokee News & Arcade, Inc. v. State, 533 P.2d 624,
626 (Okla. Crim. App. 1974); Goodwin v. State, 514 S.W.2d 942, 944
(Tex. Crim App. 1974); cf. State v. Barrett, 278 S.C. 92, 97-98, 292
S.E.2d 590, 593, cert. denied, 459 U.S. 1021 (1982) (no seizure under
state law). Contra, State v. Furuyama, 64 Hawaii 109, 637 P.2d 1095
(1981).
/6/ There also appears to be no basis at this time for the court's
forecast that "permit(ting) the warrantless arrest in this case to go
unremedied would merely license a continuation of this practice" of
making warrantless arrests for the distribution of obscene materials
(Pet. App. 18a). Prior to the court's decision, state law enforcement
officers were not required to obtain a warrant to arrest a suspect for
the distribution of obscene materials, and there is surely no reason
to presume that police officers will ignore judicial decisions
limiting police investigatory practices. While there is, as we show
below, no need in this case to decide whether a warrant is required in
such circumstances, there is also no need to exclude evidence that law
enforcement officers have lawfully obtained prior to the existence of
such a ruling, on the ground that the police will later ignore the new
rule.
/7/ The Court of Special Appeals also erred in relying upon Bantam
Books, Inc. v. Sullivan, 372 U.S. 58 (1963), and Penthouse Int'l,
Ltd., v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447
U.S. 931 (1980). In Bantam Books, a state commission sent notices to
book distirbutors that certain books were obscene, which, the state
trial court found, had the effect of compelling the distributors to
cease selling the books to retailers and to withdraw all outstanding
books from retailers. 372 U.S. at 63-64. Accepting the trial court's
finding that a distributor's "compliance with the Commission's
directives was not voluntary" (372 U.S. at 68), the Court ruled that
the Commission's directives constituted an unlawful prior restraint
(id. at 68-72). Detective Evans' purchase of books freely offered for
sale is not remotely similar to the facts of Bantam Books. The Fifth
Circuit's decision in Penthouse Int'l upheld a district court's
issuance of an injunction where the activities of local law
enforcement authorities in making warrantless arrests after purchasing
allegedly obscene magazines "constituted a calculated scheme of
warrantless arrests and harrassing visits to retailers" (610 F.2d at
1361) that amounted to a "constructive seizure" of the magazines (id.
at 1359) and an unlawful prior restraint under Bantam Books (610 F.2d
at 1359-1362). The court did not find that the purchases themselves
were unlawful or suggest that items purchased by law enforcement
officers would be subject to suppression at trial; rather, the court
was concerned with the legality of the warrantless arrests, which need
not be decided in this case.
/8/ While the Court has never directly addressed the issue, its
decisions have clearly indicated that a police officer may also make a
warrantless arrest for a misdemeanor committed in his presence. See
Welsh v. Wisconsin, No. 82-5466 (May 15, 1984), slip op. 1 (White, J.,
dissenting); United States v. Watson, 423 U.S. at 418; Carroll v.
United States, 267 U.S. 132, 156-157 (1925); cf. New Jersey v.
T.L.O., No. 83-712 (Jan. 15, 1985), slip op. 16 n.9; see also 2 W.
LaFave, Search and Seizure Sections 5.1 (1978); W. LaFave, Arrest 17
(1965). Article 27, Section 594B, of Maryland Code authorizes a
police officer to make a warrantless arrest for a misdemeanor
committed in the officer's presence. See Pet. 3.
/9/ In fact, because respondent may only have been a clerk, rather
than the proprietor of the store, it is dubious whether he may invoke
whatever First Amendment interest a proprietor may have in keeping the
store open, because respondent's sole interest in this respect would
be economic, not communicative. Otherwise, any arrest of any suspect
for any crime would give rise to a First amendment claim, because any
arrest limits a person's opportunity to engage in activities protected
by the First Amendment, at least for the duration of the period that
he is in custody. Furthermore, a variety of other crimes such as
conspiracy, obstruction of justice, or threats against federal
officials, such as the President, may implicate speech or
associational rights that are protected by the First Amendment. See,
e.g., NAACP v. Claiborne Hardware co., 458 U.S. 886 (1982); Watts v.
United States, 394 U.S. 705 (1969). This Court has never suggested,
however, that the First Amendment imposes any limitation upon a law
enforcement officer's arrest powers simply because the crime under
investigation may have a communicative aspect to it.
/10/ Some courts have held, after Burks, that the reviewing court
is required to decide whether the totality of the evidence was
sufficient even where there might be other grounds for reversal that
would not preclude retrial. See United States v. United States Gypsum
Co., 600 F.2d 414, 416 (3d Cir.), cert. denied, 444 U.S. 884 (1979);
United States v. Till, 609 F.2d 228, 229 (5th Cir.), cert. denied, 445
U.S. 955 (1980); United States v. Meneses-Davila, 580 F.2d 888, 896
(5th Cir. 1978); United States v. Orrico, 599 F.2d 113, 116 (6th Cir.
1979); United States v. Watson, 623 F.2d 1198, 1200 (7th Cir. 1980);
United States v. Vargas, 583 F.2d 380, 383 (7th Cir. 1978); United
States v. McManaman, 606 F.2d 919, 927 (10th Cir. 1979). Whether or
not such determinations are required as a matter of law, it is clear
that to expand the bar against retrial to cases involving the
erroneous admission of evidence (where the totality of the evidence
establishes the defendant's guilt) would vastly increase the frequency
and complexity of appellate evaluations of evidentiary sufficiency.
/11/ Were the Court to adopt such an exception, however, it should
be limited to cases in which the evidence found to have been
erroneously admitted both (a) is an essential and unique item of proof
and (b) is inadmissible on any other basis (or with a different
foundation).